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409 F.

3d 565

Allison A. FORSYTH, Plaintiff-Appellant,


v.
FEDERATION EMPLOYMENT AND GUIDANCE
SERVICE, a Corporation of the State of New York, Board of
Directors of Federation Employment and Guidance Service,
Alfred P. Miller, individually and as Vice President & CEO of
Federation Employment and Guidance Service and William
Alder, individually and as Vice President & Controller of
Federation Employment and Guidance Service, DefendantsAppellees.
Docket No. 03-7348.

United States Court of Appeals, Second Circuit.


Argued September 24, 2004.
Decided June 6, 2005.

Joan Franklin Mosley, New York, New York (Barbara A. Morris, Sag
Harbor, New York, of counsel), for Plaintiff-Appellant.
Richard A. Levin, New York, New York (Kerri Lynn Stone, Proskauer
Rose LLP, New York, New York, of counsel), for Defendants-Appellees.
Before: FEINBERG, CARDAMONE, and PARKER, Circuit Judges.
CARDAMONE, Circuit Judge.

Plaintiff Allison A. Forsyth (plaintiff or appellant), appeals from a judgment


entered January 13, 2003 in the United States District Court for the Southern
District of New York (Martin, J.) that granted summary judgment in favor of
his employer, Federation Employment and Guidance Service, its Board of
Directors, and certain of its former and current officers (collectively Federation
Employment Service or defendants), and dismissed plaintiff's complaint. In that
complaint, plaintiff, a black male, alleged employment discrimination based on
his race and national origin. The district court granted summary judgment to
defendants on the grounds that plaintiff's claims were untimely made and, in

any event, failed to state a basis on which any reasonable trier of fact could find
defendants discriminated on the basis of plaintiff's race or national origin.
Forsyth v. Fed'n Employment & Guidance Serv., No. 97-CV-3399, 2003 WL
41994, 1, 2003 U.S. Dist. LEXIS 60, at *5-6 (S.D.N.Y. Jan. 6, 2003).
2

Although we affirm that judgment, we write to explain that plaintiff's claim for
relief alleging salary discrimination was properly dismissed because Forsyth
failed to establish genuine issues of triable fact with respect to it, and not
because plaintiff's claim was time-barred as the district court believed. Further,
we note at the outset that on the somewhat out-of-the-ordinary facts of this
case, the district court and the defendants were excused from their duty
imposed by Rule 56.2 of the Local Rules of the United States District Courts
for the Southern and Eastern Districts of New York, see Fed. Proc. Rules
Service, Dist. Court for the S. & E. Dist. of N.Y., Rule 56.2, to provide notice
to pro se plaintiff of the consequences of defendants' motion for summary
judgment. A party's status as either represented or pro se is critical under Rule
56.2. Here plaintiff commenced the instant litigation while represented by
counsel, but later, 13 months after having been served by defendants' motion,
he began proceeding pro se. This change in statuschanging horses in the
middle of the stream, so to speakmakes the Rule 56.2 issue in this case
unique. As we explain in the discussion that follows, the district court and
defendants were properly relieved of any duty to notify plaintiff under Rule
56.2.

BACKGROUND
A. Facts
3

Plaintiff is a black male whose country of origin is Grenada. Federation


Employment Service is a New York not-for-profit mental health and social
services agency, for which plaintiff began working in April 1989 as a
bookkeeper in the accounting department. When he was hired 16 years ago,
Forsyth was the only black employee among the 18 employees in that
department. Plaintiff resigned from his position in June 1996. The parties
disagree with respect to whether that resignation was voluntary as defendants
maintain or was a constructive termination as plaintiff asserts.

The complaint alleges that plaintiff's employer discriminated against him on the
basis of his race and national origin when making salary increase and
promotion decisions, and that defendants constructively discharged him. These
claims were brought under Title VII, see 42 U.S.C. 2000e et seq. (2001), 42
U.S.C. 1981, New York State Human Rights Law 296, see N.Y. Exec. Law

296 (2004), and the federal and New York State Constitutions. A claim under
125 of the Administrative Code of the City of New York was included in the
complaint, but that claim is not before us.
5

Plaintiff raises a number of arguments in support of his discrimination cause of


action, but only the salary discrimination claim warrants discussion. To support
that claim, Forsyth alleged that throughout his employment at Federation
Employment Service he was paid less than similarly situated white male and
female employees. In his affidavit in opposition to summary judgment, he
discusses three fellow employees whom he maintains were given more frequent
wage increases or higher entry salaries than Forsyth receivedGalina Khasin,
Susan McLean, and Thomas Ferri. Plaintiff also maintains that wage increases
to him were less than those given to other similarly situated employees. But, at
least with respect to the two employees for which defendants provided wage
increase informationGalina Khasin and Thomas Ferrithe difference
appeared to be in the starting wage, rather than in pay increases, which were
substantially the same.

Galina Khasin was hired as an accountant in September 1989, the same year
Forsyth began employment. Ms. Khasin made $4,000 more at the time of hire
as an accountant than plaintiff was then earning as a bookkeeper, although they
both had the same level of education. Plaintiff pursued a graduate degree during
much of his employment and contends therefore that he was as qualified as
Khasin for the position of accountant. Yet, as her employment application
showed, Khasin had much more bookkeeping and accounting experience than
plaintiff did. Because much of Khasin's experience was in Russia, rather than in
the United States, and because, according to plaintiff, the Russian accounting
system is different from the U.S. accounting system, plaintiff suggested that
Khasin's experience was not as extensive as it appeared. Nonetheless plaintiff
offered no evidence to rebut defendants' explanation for the discrepancy in
wages, that is, that Khasin was hired as an accountant and given a higher salary
than plaintiff because she had more experience.

Susan McLean was hired as a senior accountant in 1994. McLean's entry salary
was $8,000 more than plaintiff was receiving at the time when McLean was
hired. Forsyth avers that he had expressed interest in and was qualified for the
position McLean was hired to fill, but that it went to McLean instead even
though plaintiff asserts she was not qualified. In his deposition plaintiff
admitted that he did not think McLean was given the job in preference to him
based on his race, but also states that the decision could have been based on his
nationality. Regardless, plaintiff failed to offer any proof sufficient to show that
he was as qualified or more qualified than McLean for the position of senior

accountant.
8

Defendants hired Thomas Ferri, a white male, about three and one-half years
after plaintiff began working. Plaintiff maintains that he was qualified for
Ferri's position and, in fact, had to train Ferri when he started. Ferri's starting
salary was $10,000 more than plaintiff's salary at the time. Defendants
explained that Ferri was given the job, and a higher salary, because he had
seven and one-half more years of accounting experience than Forsyth did.
Plaintiff failed to rebut this explanation for defendants' decision to hire Ferri
rather than him.

B. Prior Proceedings
9

On March 18, 1994 plaintiff complained to his supervisor, William Adler, that
he felt he was receiving disparate treatment and that he believed defendants'
salary decisions with respect to Khasin, McLean, and Ferri constituted
discrimination against him. Receiving no response to that claim, plaintiff filed a
charge of discrimination with the New York State Division of Human Rights
and the Equal Employment Opportunity Commission of the United States
(EEOC). On April 25, 1997 within 90 days of receiving a right to sue letter
from the EEOC on January 26, 1997, plaintiff filed his complaint in the instant
litigation.

10

Defendants filed an answer denying plaintiff's allegations of discrimination.


After the close of discovery in July 2000 defendants moved for summary
judgment. The district court informed plaintiff that his response was due on
July 14, 2000. Forsyth v. Fed'n Employment & Guidance Serv., No. 97-CV3399, 2001 U.S. Dist. LEXIS 1003, at *1 (S.D.N.Y. Feb. 8, 2001). Six months
later on February 8, 2001 when it appeared that plaintiff's then-counsel
Barbara A. Morris, Esq. and Frederick H. Hayes, Esq.had failed to respond
to defendants' motion, the district court issued a sua sponte order, ordering
plaintiff to show cause why it should not grant summary judgment. Id. at *9.
One of plaintiff's counsel, Ms. Morris, submitted two doctor's notes and her
own affidavit to the district court explaining that she was having medical
difficulties. The district court was not persuaded by these submissions that she
was so incapacitated as to be unable to work on the response to defendants'
motion. Id. at *7. When neither plaintiff nor his counsel responded to the trial
court's order to show cause, plaintiff was given the opportunity to obtain new
counsel rather than have the court dismiss his case and grant summary
judgment to defendants, provided he first reimburse defendants for the amount
of the attorney's fees they had incurred from July 7, 2000. Forsyth v. Fed'n
Employment & Guidance Serv., No. 97-CV-11446, 2001 U.S. Dist. LEXIS

11446, at *14-15 (S.D.N.Y. Aug. 9, 2001).


11

Although plaintiff never retained new counsel, he did pay defendants' attorney's
fees and, proceeding pro se, filed an affidavit in opposition to defendants'
motion for summary judgment on April 2, 2002. The district court then directed
the parties to furnish additional information regarding Khasin's, Ferri's, and
plaintiff's employment with defendants on July 26, 2002. Continuing to act pro
se, plaintiff responded to this order on August 15, 2002.

12

The district court entered an order on January 8, 2003 granting defendants'


motion for summary judgment and dismissing plaintiff's complaint. Forsyth,
2003 WL 41994 at *2, 2003 U.S. Dist. LEXIS 60, at *7. Plaintiff appeals from
the judgment entered on that order and from the order dated March 4, 2003
denying his motion for reconsideration.

DISCUSSION
I Standard of Review
13

We review de novo a grant of summary judgment, applying the same standards


as the district court. See Taggart v. Time Inc., 924 F.2d 43, 45-46 (2d Cir.1991).
Summary judgment is appropriate when after viewing all the facts in the record
in a light most favorable to the non-moving party, there is no genuine issue of
material fact present, so that "the moving party is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Such relief for the
moving party may be appropriate after discovery if the non-moving party
cannot prove an "essential element of her case," that is, one for which she bears
the burden of proof. See Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84
(2d Cir.2004).

14

In determining whether the district court acted properly in granting summary


judgment, "we resolve all ambiguities and draw all reasonable inferences
against the moving party." Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997).
Where the non-moving party is proceeding pro se, the court must interpret that
party's supporting papers liberally, that is, interpret them "to raise the strongest
arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir.1994).

15

More caution should be exercised in affirming the grant of summary judgment


in a discrimination case because "smoking gun" evidence of discriminatory
intent is rare and most often must be inferred. See Holtz v. Rockefeller & Co.,

258 F.3d 62, 69 (2d Cir.2001). Yet, this drastic remedy may be proper in such a
case where the moving party has submitted facts sufficient to show that the
non-moving party's claim has no merit, and the non-moving party's attempts to
rebut the movant's facts consist only of "mere allegations or denials" of the facts
asserted by the movant. Fed.R.Civ.P. 56(e).
II Notice Under Rule 56.2
16

Forsyth was proceeding pro se at the time the motion for summary judgment
was granted, but was represented by counsel when the motion was made and
for 13 months thereafter. Rule 56.2 of the Local Rules of the United States
District Courts for the Southern and Eastern Districts of New York states

17

Any represented party moving for summary judgment against a party


proceeding pro se shall serve and file as a separate document, together with the
papers in support of the motion, a "Notice To Pro Se Litigant Opposing Motion
for Summary Judgment" [(notice)] in the form indicated below.

18

Fed. Proc. Rules Service, Dist. Court for the S. & E. Dist. of N.Y., Rule 56.2.
The Rule goes on to specify the necessary content of the notice, including, for
example, a warning to pro se non-movants that they "must submit evidence,
such as witness statements or documents, countering the facts asserted by the
[movant] and raising issues of fact for trial." Id.

19

The Board of Judges of the Southern and Eastern Districts of New York
adopted Local Civil Rule 56.2 on November 18, 1999. The adoption of this rule
came in response to our decision in Vital v. Interfaith Med. Ctr., where we
reiterated the rule regarding notice to pro se litigants: "`[t]he failure of a district
court to apprise [pro se] litigants of the consequences of failing to respond to a
motion for summary judgment is ordinarily grounds for reversal.'" 168 F.3d
615, 620 (2d Cir.1999) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir.1994) (per
curiam)).

20

Local Civil Rule 56.2 is based on this Circuit's long held concern with the
disparity in knowledge of court procedures between a lawyer and a pro se
litigant. When a pro se's represented opponent files a motion for summary
judgment supported by affidavits, the pro se litigant cannot be presumed to be
aware of the fact that he must file his own affidavits contradicting his
opponent's if he wants to preserve factual issues for trial. See Graham v.
Lewinski, 848 F.2d 342, 344 (2d Cir.1988).

21

Thus, failure by the represented movant and the trial court to serve notice in

21

Thus, failure by the represented movant and the trial court to serve notice in
accordance with Rule 56.2 ordinarily results in reversal of a grant of summary
judgment, regardless of the strength of the movant's motion, unless it is clear
that the pro se party understood the nature and consequences of summary
judgment. Irby v. N.Y. City Transit Auth., 262 F.3d 412, 413 (2d Cir.2001) (per
curiam); cf. Arum v. Miller, 331 F.Supp.2d 99, 105 (E.D.N.Y. 2004) (noting
that in prior district court proceedings, "[t]he [c]ourt ... declined to consider a
summary judgment motion on the merits until, in accordance with Local Civil
Rule 56.2, notice was given to the pro se [p]laintiff"). Here, neither the district
court nor the defendant employer provided the pro se plaintiff with the notice
required by Rule 56.2. Normally that would justify our reversing the grant of
summary judgment. See Irby, 262 F.3d at 413. However, we decline to do so
here because, as discussed below, we find that Forsyth understood the nature
and consequences of summary judgment.

22

At the time Federation Employment Service served its summary judgment


motion and for 13 months thereafter, plaintiff was represented by counsel.
Thus, this case presents the question of whether Rule 56.2 should apply where
the non-moving party was not pro se at the time the motion for summary
judgment was filed. On its face, the Rule does not indicate whether it applies
under such circumstances. Determining that the Rule would not apply in this
case runs the risk that a litigant, whose counsel is dismissed after a motion for
summary judgment is served, will be left uninformed and unfairly exposed to
summary judgment. This is particularly true where, as here, the district court
dismissed plaintiff's counsel for failure to respond to the summary judgment
motion. But, perhaps that concern is better addressed in a suit brought by
plaintiff against counsel who failed to inform him of the consequences of
summary judgment. We need not decide the appropriate interpretation of the
Rule today, however, because we would not reverse even were the notice
requirement to apply in this case.

23

Regardless of whether the district court or defendants had a duty to notify


Forsyth of the consequences of summary judgment under Rule 56.2, we decline
to reverse the grant of summary judgment because plaintiff's submissions to the
district court show that he understood his responsibilities under Rule 56. See
Irby, 262 F.3d at 413. To determine whether a pro se party had such an
understanding, we examine the record as a whole. McPherson v. Coombe, 174
F.3d 276, 281 (2d Cir.1999). We may consider the papers submitted by that
party and the party's participation in the district court proceedings. Vital, 168
F.3d at 621 (finding that where pro se non-movant submitted only one
paragraph response, which attached one exhibit, and did not submit a 56.1
statement, we could not determine the pro se party "knew that he was required
to present counter-affidavits or other documentary evidence"). Although not

dispositive, a pro se party's failure to submit a statement of material facts


required by Local Civil Rule 56.1, see Fed. Proc. Rules Service, Dist. Court for
the S. & E. Dist. of N.Y., Rule 56.1, is some evidence that the pro se party did
not understand her duties in response to a motion for summary judgment. See
Dais v. Lane Bryant, Inc., No. 97-CV-2011, 2000 WL 869489, at *2, 2000 U.S.
Dist. LEXIS 8888, at *8 (S.D.N.Y. June 29, 2000).
24

Courts have identified certain actions taken by pro se non-movants that are not
enough, standing alone, to prove that the pro se non-movant understood the
consequences of the summary judgment motion brought against her. For
example, a pro se litigant does not lose the right to notice under Rule 56.2
simply because she files some response to the opposing party's motion for
summary judgment. Vital, 168 F.3d at 621. Also, even where a non-movant pro
se party's papers specifically cite to Rule 56, the court may not assume, on that
ground alone, that the pro se party understood her duties in opposing a motion
for summary judgment. McPherson, 174 F.3d at 281.

25

Based on plaintiff's submissions to the district court, including his affidavit in


opposition to the motion for summary judgment, and his affidavit in response to
Judge Martin's order to show cause, we think it clear that plaintiff understood
his responsibilities under Rule 56. In his seven-page affidavit in opposition to
the motion for summary judgment, plaintiff set forth the majority of the facts
included in his briefs to this Court, i.e., the critical facts of his case, and stated
that he "was paid less than similarly situated employees (a term which I now
understand)." He also asserted that he continually sought promotion and that he
was not informed of available accounting positions. Both assertions suggest he
understood his duties in opposing a motion for summary judgment on his claim
of discriminatory denial to promote him. In the affidavit in response to Judge
Martin's order, also seven pages long, plaintiff cites case law and provides a
legal analysis of the concept of similarly situated employees. In addition, he
attached four exhibits to this affidavit, and set out facts attempting to show that
he was similarly situated to Ferri and Khasin, the two employees mentioned in
Judge Martin's order.

26

The linchpin of Rule 56.2 is whether a pro se plaintiff like Forsyth ultimately is
aware of the basic requirements and ramifications of the adjudication of the
summary judgment motion against him. Here, plaintiff's opposition papers filed
pro se indicated that he understood his responsibilities under Rule 56. Hence,
under these circumstances, even if Rule 56.2 applies where the non-moving
party was not pro se at the time the motion for summary judgment was served,
neither the district court nor defendants were required to provide plaintiff with
notice under Rule 56.2.

III Plaintiff's Salary Discrimination Claim


A. Timeliness
27

One of the grounds on which the district court dismissed plaintiff's complaint
was timeliness. A complainant has 300 days from the date of the alleged
unlawful employment practice to institute proceedings with a state or local
agency. Otherwise, the complainant has only 180 days from the date of the
alleged unlawful employment practice to file a complaint with the EEOC. 42
U.S.C. 2000e-5(e)(1) (2001). Thus, plaintiff's Title VII claims regarding
actions taken 300 days prior to March 24, 1994the date on which he filed a
charge of discrimination with the New York State Division of Human Rights
and the EEOCare time-barred. See id.

28

Section 296 of the New York State Human Rights Law, see N.Y. Exec. Law
296, N.Y. City Admin. Code 8-502 (1993), and 42 U.S.C. 1981, allow
complainants three years from the date of the injury allegedly caused by
discrimination to file suit. See Wilson v. Fairchild Republic Co., 143 F.3d 733,
738 n. 5 (2d Cir.1998). Plaintiff's claims for relief under these laws are
therefore time-barred unless they occurred three years prior to April 25, 1997,
the date on which the instant complaint was filed.

29

The statute of limitations for an unlawful employment practice begins to run


when the unlawful practice occurs. Discrete discriminatory acts are timebarred, notwithstanding the fact that "they are related to acts alleged in timely
filed charges," if they fall outside of the limitations period. See Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d
106 (2002). At the same time, each distinct discriminatory act starts the clock
running again for purposes of filing charges alleging that act. Id. For most
discrete discriminatory acts, i.e., termination, failure to promote, denial of
transfer, or refusal to hire, that time is obvious; it is the date the actual
termination or decision not to promote occurred. Id. at 113-14, 122 S.Ct. 2061.
For others, such as salary discrimination, the discrete act analysis is not so
clear-cut.

30

The Supreme Court had explained that "[e]ach week's paycheck that delivers
less to a [disadvantaged class member] than to a similarly situated [favored
class member] is a wrong actionable under Title VII, regardless of the fact that
this pattern was begun prior to the effective date [of Title VII]." Pollis v. New
Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir.1997) (quoting Bazemore v.
Friday, 478 U.S. 385, 395-96, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986)
(Brennan, J., concurring)). As we explained in Pollis, discriminatory pay scales

are not continuing violations. Id. at 118-19. Instead, such scales involve a
number of individual and separate wrongs rather than one course of wrongful
action. Id. at 119. And, each repetition of wrongful conduct may, as Morgan
taught, be the basis of a separate cause of action for which suit must be brought
within the limitations period beginning with its occurrence. A salary structure
that was discriminating before the statute of limitations passed is not cured of
that illegality after that time passed, and can form the basis of a suit if a
paycheck resulting from such a discriminatory pay scale is delivered during the
statutory period. Bazemore, 478 U.S. at 396 n. 6, 106 S.Ct. 3000.
31

Both Federation Employment Service and the district court seem to read
Morgan to overturn Bazemore, and to render plaintiff's salary discrimination
claim untimely. Forsyth, 2003 WL 41994 at *1, 2003 U.S. Dist. LEXIS 60, at
*5-6. Such view fails to recognize that Morgan specifically adopts the
understanding set forth in Bazemore that every paycheck stemming from a
discriminatory pay scale is an actionable discrete discriminatory act. See
Morgan, 536 U.S. at 111-12, 122 S.Ct. 2061. Even if defendants are correct in
stating that plaintiff was not eligible for the protection of the concept of
continuing violation, the district court was not correct to conclude that plaintiff
needed to rely on the continuing violation doctrine in the first place.

32

It is evident that a discriminatory pay schedule is a discrete act, even though it


involves repeated conduct. Id. at 112, 122 S.Ct. 2061. Any paycheck given
within the statute of limitations period therefore would be actionable, even if
based on a discriminatory pay scale set up outside of the statutory period. But, a
claimant could only recover damages related to those paychecks actually
delivered during the statute of limitations period. See Pollis, 132 F.3d at 119.
Plaintiff's salary discrimination claim, then, was not time-barred as the district
court wrongly believed, but his recovery would be limited to those paychecks
he received within the relevant statute of limitations period, i.e., paychecks
received within 300 days prior to March 24, 1994, or paychecks received after
that date. As he filed a claim with the EEOC and the New York State Division
of Human Rights on March 24, 1994, plaintiff's salary discrimination claim
under Title VII would not be time-barred because he continued working at
Federation Employment Service and receiving a paycheck, until June 6, 1996,
the date of his resignation. Similarly, plaintiff's claims under 42 U.S.C. 1981
and 296 of the New York State Human Rights Law would not be time-barred
because he brought this suit on April 25, 1997 and was still working in 1996.
Based on the above analysis, we cannot agree with that portion of the district
court's holding that ruled plaintiff's salary discrimination claims time-barred.

B. Failure to Establish a Prima Facie Case

33

Nonetheless we affirm the trial court's grant of summary judgment in favor of


defendants. We agree with the district court that plaintiff failed to proffer
sufficient proof to establish a prima facie case of salary discrimination. On a
motion for summary judgment in a discrimination case the plaintiff must
provide the trial court with more than his own conclusory allegations declaring
discrimination was present. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Ottaviani v. State Univ. of
N.Y. at New Paltz, 875 F.2d 365, 370 (2d Cir.1989). Here, plaintiff was able to
prove only that his salary was less than other Federation Employment Service
employees' salaries. Standing alone, that is not enough proof of discrimination
to survive a motion for summary judgment.

CONCLUSION
34

Accordingly, the judgment of the district court granting defendants' motion for
summary judgment and dismissing plaintiff's complaint is affirmed.